Bernie Corbett’s Response to WMUIW

Bernie Corbett, General Secretary of the WGGB has taken the time to expand on the arguments I criticised in an earlier post. I’m going to post his response in full below, and thank him for responding at all to a member’s concerns and for such a full response.

I am not going to have Internet access for few days, so shan’t answer any of his points until next week. Here’s Bernie’s post:

Well I shall respond to Nathaniel’s reply (which is 200 words longer than my original piece). A considered argument deserves a considered response.

I hope he doesn’t mind me calling him Nathaniel, by the way. Those of us who have been around a bit recognise this repetitious “Mr Corbett this, Mr Corbett that” dodge – it makes Nathaniel sound polite,even respectful, while subliminally he is making me appear pompous and old-fashioned. Don’t be formal! You can call me Bernie.

The DEB has been much-debated in Parliament, it just happens that this took place in the House of Lords, which spent long days picking through the bill with some expertise and made numerous improvements. This is not the time for a constitutional debate, suffice it to say that a hereditary element in the Lords is anathema, a largely appointed house is an outrage against democracy, and I support a fully elected chamber. But most observers do not deny the effectiveness of the Lords as a scrutinising and revising chamber, and it played exactly that role in this case. “Tawdry and secretive” it was not.

Having said that, I do agree that the bill should have had a full airing in the Commons (and I would have said so but I was trying to save space and get to the point). Perhaps the bill would have been massively amended, and Nathaniel would have approved of it, had it not run into the buffers of the pre-election “wash-up”, but somehow I doubt that and I think this argument has been used just because it is available. We haven’t heard this objection in relation to the Finance Bill, the Flood Bill, the Children, Schools and Families Bill or the other measures that have followed the same procedure.

I am not against petitions, and have signed hundreds, but be honest – they are part of the apparatus of protest, not debate.We quote them when we agree and we ignore them when we differ. Fifty thousand people signed a petition to change the Olympic logo. Twenty-five thousand signed a petition for the Pope to pay his own expenses when he visits the UK. Does this prove anything?

No amendments were “shoved in at the behest of the BPI”. Anybody who has been following the passage of this bill knows that literally hundreds of amendments were proposed and lobbied for by all kinds of interest groups, and it took a lot of patience and careful argument to get them taken seriously, let alone incorporated.

Everybody seems to be against Parliamentary lobbying nowadays – except, that is, when it is their own opinions and interests that are being lobbied for. As a veteran of this sort of thing, I grind my teeth at the huge amounts of money and influence big business can bring to bear compared with those representing workers and the disadvantaged – let alone individual citizens.

One voice of big business is the BPI, although as well as the major record labels it does represent lots of small ones as well. Confusingly the initials denote “The British Recorded Music Industry” (it used to be called the British Phonographic Industry) and it is best known for running the Brit Awards. But in this case, when Nathaniel mentions the BPI he is really referring to the “Creative Coalition Campaign”, specially set up for this bill, which along with the BPI also includes the TUC, Unite, Equity, the NUJ and several other unions (including the Writers’ Guild). You may say all of these unions, and other organisations representing creators, were dupes of big business, but if you do you ought to present some evidence. I don’t believe there is any. (For what it is worth, I and the Writers’ Guild supped with the longest of long spoons.)

The point about people “accused” of file-sharing, not “convicted”, is a superficially attractive one. But it depends how heinous an offence you think file-sharing is. We are used to automatic penalties for minor infringements – this is the territory of parking tickets, speed cameras, etc. Modern society couldn’t cope with putting all these through the courts. A few people appeal, whether they sense an injustice or are just trying it on – and a surprisingly large proportion of these appeals are successful. But the vast majority of people know it is a fair cop and they pay up. I don’t think file-sharing is a major crime requiring a judge and jury, like murder or armed robbery, and yes I do think an automatic procedure – with safeguards – is appropriate and workable.

Nathaniel might argue that the bigger problem is the seriousness of the penalty. I don’t think it is disproportionate. Some people (though not Nathaniel, as far as I know) have gone so far as to say that a speed restriction or suspension of internet access amounts to a denial of a human right. I would see it more as an inconvenience.

A human right? How does that work unless it is also a human right to own a laptop and have high-speed access to an ISP? What about the five and a half billion people in the world with no prospect of either? At least in the UK if you get cut off you can always pop down to the local library or internet cafe.

Some people have argued that honest, non-infringing citizens could end up carrying the can for the actions of their teenage offspring (not much new there, I’m afraid) or of piggybacking neighbours or wifi tourists. But couldn’t such HNICs tackle such issues on receipt of the first or second warning, if necessary by simple encryption or password measures?

I stick to my view that this part of the bill has been talked up in an almost hysterical way, and that this hare has been set running not by well-intentioned civil libertarians, but by copy-left-creative-commons fundamentalists who believe everyone should have access to all digital material without permission and without payment. As the trade union representative of people who earn their living by writing, I would be failing in my duty if I did not attack such crazy notions.

Nathaniel, whom I do not accuse of such insanity, has missed my main point, which is that the whole penalty issue is a justified but small component of a much bigger change in behaviour and expectations that is needed not only from the public and consumers, but also from professional writers, performers, etc., and from publishers, producers, distributors and retailers. No Act of Parliament is going to bring that about, but I believe the relentless logic of the digital revolution will. The winners will be those who adapt early.

At this point Nathaniel’s arguments begin to slide downhill. He trots out some familiar urban myths and starts attacking the US Digital Millennium Copyright Act, to which the DEB bears little resemblance. The less said about Lawrence Lessig the better, in my view, but it is true there are huge issues around Google/YouTube and the like. The one thing we can’t do is ignore them or wish them away. We have to engage. Trade unions are not utopian institutions – they react to real events and they make deals to maximise the benefits to their members. The Writers’ Guild – a tiny and ill-resourced organisation – has been remarkably successful in this for the past 50 years (just look at the situation across Europe where no such guilds have established themselves). We are not going to stop now, just when a whole new set of challenges and threats has emerged.

I have no time for the Royal Mail argument – it is an old favourite but it is a canard. One of the besetting problems of dealing with the digital world is the way people continually try to make analogies with the analogue world, sometimes even the pre-Gutenberg world. It isn’t the same. Nothing is the same. That is the whole point about revolutions. We are all going to have to adjust our thinking and make difficult compromises. Our bookshelves, our TV aerials, our channels and schedules, our repeat fees, our royalties and our copyright laws are all headed for the museum, along with hand looms, steam engines and supersonic airliners. And the Royal Mail, I’m afraid.

Equally I don’t buy Nathaniel’s paranoia. There are lots of issues around surveillance and state-owned personal data, and I won’t get into all that today, but I don’t believe we live in a fascist state and I don’t believe we are heading for one. I have known many photographers over many years, and I can’t remember a time when they weren’t harassed and mistreated by the forces of authority. When I was editor of The Journalist, a quarter of a century ago, nearly every issue reported an example. Remember the miners’ strike? Wapping? The fact is, whether it is photographers, demonstrators, black people or whoever, the police simply reach for the legislation they have most recently boned up on. This is not about anti-terrorism measures (which we do actually need). It is about police behaviour and accountability – another subject for another day.

At the end of his riposte, Nathaniel gets philosophical – I am not being sarcastic, I think he poses the right question: “Is ownership the only valuable facet of creative work?” It sounds like a rhetorical question, but it shouldn’t be. Nathaniel doesn’t offer an answer, but I shall.

In the old world the author was the owner of the work, until forced to transfer ownership to an exploiter, who in return would pay the author a small fraction of the money earned by exploiting the work. In the new world this system is already collapsing. We are nearing the point where authors and creators can realistically publish their own works, if they wish, although there will be many circumstances where they still want someone else to do the production and exploitation for them.

But in the new world, as soon as a work is published, ownership becomes meaningless. The digital artefact is owned immediately by everybody and by nobody. The issue is: must all creativity become amateur? If not, by what means can authors and creators receive rewards to enable them to feed, clothe and house themselves and their families? That is the question that creators’ trade unions are uniquely responsible for answering (nobody else will do it). And in the Guild we believe we are finding answers.

In my view the jettisoning of Clause 43 from the DEB means it will be harder, and take longer, for answers to be found. Those who are currently jubilant may think differently in a couple of years’ time if we end up with a new copyright act drafted by a Tory government on behalf of global corporations. Don’t be dispirited. Let us work together – in the Writers’ Guild, in all the unions – to ensure that this remains just a bad dream.

We didn’t get our revolution in 1926, nor in 1968, but we have got one now and I for one relish it.

***UPDATE – As well as the comment in the section below, I raise another practical issue with Bernie in this post ***

19 comments

I thought I could leave this here and go to bed, ponder for a few days, find a wifi point somewhere and return to give my considered opinion, but I can’t. Of course I can’t.

So, here are my immediate thoughts, scribbled down in the knowledge that I have to be up in a few hours to bundle unwilling toddlers into a car in preparation for a very long journey, and I’ve a large glass of red in one hand. Apologies in advance for any immoderate language…

1) For a lot of this post I feel that Bernie wants to have it both ways: he would have preferred the scrutiny of the House of Commons, but people who would have preferred that are hypocrites who don’t bring it up about any other bill. The Creative Coalition Campaign was not sullied in any way, but we supped with a long spoon to avoid getting sullied. Illegal file-sharing is a ‘minor offence’ like a parking offence, but it should certainly not be treated with a fixed-penalty notice like every other minor offence he lists.

2) Bernie has not answered the point that there is no way of gathering evidence of people infringing. There are ways of gathering information about IP addresses (where an infringement has occurred), but no way of knowing which individual is responsible. In the event, as has been said many times, of someone misusing a public wifi connection in a library, cafe, pub, or university, public services will be closed because this Bill was hastily drawn up and attempts to provide a broad-brush solution that doesn’t affect infringers, but rather people providing Internet access.

I work a lot from cafes. You find yourself doing that a lot when there are under-3s in the house and a deadline looming. I use public wifi in cafes or pubs, and I’m a heavy user of web-locker services. In writing and editing audio or video the ability to securely transfer large files to and from my producer is vital. And yet, despite Clause 18 having been removed at the end of March because of the disproportionate effect it would have on legal, useful services, a very similar amendment was added at the last minute, giving the power to block sites to the Secretary of State for Business.

My ability to continue writing and producing things in the way I do – and the alternative is burning things to DVD and having them couriered across the country – is in the gift of the Secretary of State for Business, likely to be a Conservative in a few weeks, and I am meant to relish this.

The fact that Bernie uses the term ‘file-sharing’ when he means ‘illegal file-sharing’ is exactly the problem. There is a swathe of the population who do not understand that a lot of file-sharing is legal, and necessary in the creative industries.

4) I’m going to have to contract the rest of what I want to say or I’ll never get to bed. And then I shall be in trouble…

There is a basic, fundamental, philosophical disagreement between Bernie and me. It’s not one of the ones he’d like to imply (that I’m using the same arguments as a lunatic, copyleft, creative commons fundamentalist paranoid – not that he’s saying I am, but that people who are would agree with me).

The disagreement is this:

“The issue is: must all creativity become amateur? If not, by what means can authors and creators receive rewards to enable them to feed, clothe and house themselves and their families? That is the question that creators’ trade unions are uniquely responsible for answering (nobody else will do it). And in the Guild we believe we are finding answers.”

In this case, I do not believe the Guild are.

There is nothing in this Bill that enhances a creator’s rights over their creation, that strengthens their position in the marketplace, or that helps them control the way in which their work is exploited. Does it provide compensation for those whose work is copied illegally?

The answers in the new world Bernie describes are unlikely to be to exactly the same as the business models of the old world propped up by collectively punishing people who use the same internet connection as someone who may have infringed (and Bernie concedes that a surprisingly high number of people who appeal against fixed-penalty notices appeal successfully).

Practically, of course, everyone knows it will not work. In order to continue downloading illegally whatever you like you can arrange IP proxies or IP encryption as any teenager (or dedicated infringer of any age or class) who has access to the Internet can discover within minutes. The only people you might possibly catch are the dim and the innocent.

The philosophical difference between us seems to me to be that I embrace a writer’s ownership of their work and accept that those who currently exploit their work may not have the same interests as those who create it. That is not to say I’m not as dependent on those who can produce and exploit my writing as everyone else, but that I don’t think that a writer’s union should necessarily be cheering a victory for media companies. Our interests are not the same now, and may well diverge further in the future.

As someone whose sole source of income is writing and performing I have struggled a lot with issues of how one uses creativity to provide for two young children. I believe that the Internet provides us with huge new opportunities for retaining control of and exploiting our creations. If I saw anything in this legislation that would help I would cheer it. But it simply isn’t there.

I value a lot of what the Writers’ Guild does, and it provides essential functions. and support. In this case, however, I don’t think the argument being made is for the benefit of writers.

I agree with Bernie about Clause 43, but his implication that this law would be different if the Tories had drafted it is laughable. It wouldn’t have passed without Tory support. He says we’re meant to fear laws written by global corporations, but embrace this one written by national corporations.

I think it’s in pretty bad taste to invoke the spirit of 1926 and 1968 in support of sweeping new powers for government. If Bernie’s implying that the Internet provides our revolution, then the WGGB should start revolting. I can’t wait…

I’m disabled and suffer from phobias. The internet has become my lifeline for shopping and interaction with the wider world. As well as allowing me to access information that would be difficult for me to obtain in other ways. Using internet cafes and libraries would be very difficult. Losing that access would be far more than an ‘inconvenience’.

I run my business from home, a business that employs two other people (who also work from home) and which relies on always-on, high-speed internet access to communicate and exchange files and information with clients.

Losing my internet access would be more than an inconvenience. It would effectively make me unable to work from my workplace for the duration of the suspension (a period not defined in the Digital Economy Act, which leaves it up to Ofcom to establish the finer details of the ‘technical measures’) and could lose me clients in the longer term.

It is true that I could go to the library or an internet café and use their connection if mine was cut off – as in fact I have done in the past when waiting for BT to install my broadband line. My working hours are 5am to 2pm, so they would have to be quite accommodating libraries and cafés.

Also, as the Act makes places like libraries and cafés liable for any alleged copyright infringement taking place over their connection, I wouldn’t be surprised if such places become more reluctant to offer open wi-fi access in future.

Of course I know that in reality the likelihood of my ever being cut off by my ISP (BT) is extremely remote. This doesn’t detract from the fact that the Act very much allows for it to happen to people who are guilty of nothing, or from the fact that Bernie Corbett is obviously very out of touch with his own Guild members and the modern world at large if he thinks that being disconnected from the internet only amounts to a minor nuisance.

For me and my husband (a scriptwriter), and for hundreds of thousands of other people in the UK, internet access at home and at public hotspots has become vital to our livelihoods. This, to me, is the UK’s ‘digital economy’, or at least a large and flourishing part of it, and ironically it seems to be exactly the thing that is under threat from the new legislation.

Thank you for that, I enjoyed it. However, it’s not going to convince people like Bernie, above, who are convinced that there are no acceptable analogies. This requires all-new thinking (that is very similar to the thinking we were doing in the 1980s).

[…] of great britain Whatever other differences we might have, the fundamental disagreement between Bernie Corbett and me can be boiled down to one essential point. He thinks it is wise to disconnect people from […]

[…] Writers’ Guild of Great Britain, who was defending the Digital Economy Bill. Surprisingly, he emailed me with a full response, which I have now posted at the link above, and I’ve answered a couple of his points in the […]

[…] the Writers' Guild of Great Britain, who was defending the Digital Economy Bill. Surprisingly, he emailed me with a full response, which I have now posted at the link above, and I've answered a couple of his points in the […]

[…] Writers’ Guild of Great Britain, who was defending the Digital Economy Bill. Surprisingly, he emailed me with a full response, which I have now posted at the link above, and I’ve answered a couple of his points in the […]

most people in your position would not engage publicly and I’d like to thank you for doing so. However, I believe it is largely driven by ignorance and an attempt to whitewash, rather than any attempt to debate. You state,

“a largely appointed house is an outrage against democracy”

I’m glad you take democracy seriously. Being penalised on accusation only is an outrage against democracy. Having to battle to get due process included into the disconnection policy (since initially you were not even allowed to protest) is an INCREDIBLE outrage against democracy. Make your mind up Bernie, either you are for democracy or against it. Don’t pick and choose when it suits you best.

“We are used to automatic penalties for minor infringements – this is the territory of parking tickets, speed cameras, etc.”

I wasn’t aware that you could be penalised for such things by accusation. Surely your car,with it’s registered number plate directly traceable to you, being parked illegaly is rather concrete evidence? As for speed cameras, you are aware that such devices are rather stringently controlled and calibrated by the authorities in order to provide solid, accurate evidence? Surely you are aware that it isn’t just anyone who can operate such speed cameras and then simply threaten people for money to avoid being taken to court? I’m sorry but your examples are simply idiotic and not even close to comparable. The processes you state are carefully controlled and include a fully democratic due process. Quite the opposite of the DEB.

The analogy with the Royal Mail IS comparable and IS accurate. I believe it to be a logical case of reductio ad absurdum and, when put in such terms, rather highilghts the sheer stupidity of this bill. It is noticeable that you provide NO argument against this example. You simply state “it’s not the same” and then rant about how everything must change without ever explaining why. Nothing but a complete and total deflection, and rather tellingly so. Very naughty, Bernie.

Nathaniel’s paranoia is also rightly justified. Surveillance techniques has been grossly abused for the most ridiculous purposes and the public are highly aware of this. There have been big stories on the news channels and in the national papers detailing such abuses. I don’t think you convince anybody with your rather blatant attempts to sweep it under the carpet, and I cannot even begin to think of why you would attempt to paint black as white so obviously. The public KNOW, and, as such, lieing about it only reflects on yourself. Why would you do that?

I could go on, although it would be pointless to someone like yourself who is clearly pushing someone else’s agenda in the face of logic and reason. I have real trouble taking you seriously due to the subtle contradictions in your reply, such as how you state that it is a revolution and everything must change, whilst continually drawing comparison to the past to defend your points. As I stated at the beginning, it is nice that you have replied, however, it seems to be in ignorance and I will not be surprised if there are no more responses after this, since they are as much an argument against yourself, as for.

Thank you for the comment, Shankly, I obviously agree wholly with most of it.

However, I would take issue with your saying that Bernie “is clearly pushing someone else’s agenda in the face of logic and reason.” I don’t think that’s true; or, at least, don’t think the implication is fair. I think that Bernie really believes that illegal file-sharing is a serious threat to his industry, or perhaps just wishes to be on the safe side. Who wants to be the General Secretary of the Writers’ Guild who opposes the legislation that could lead to more jobs for writers? I think that Bernie, politically, is in a difficult position and has made the wrong choice.

I think this is partly because WGGB members have not been clearer in where their sympathies lie. Also, the members I know tend to be younger, heavy users of the Internet, and eager to find new ways of using the Internet – there’s a selection bias in my basing my views about the WGGB membership on the members I know and correspond with.

In the absence of evidence from the membership to the contrary, the best sources to whom Bernie had access were the industry spokespeople. That is why I wrote the post I did. I wanted to make it clear that there was dissent (even if it is just me) on this issue, and that I thought the union had made a half-hearted, unconvincing case. If one side is producing research (no matter how flawed), preparing policy papers, and actively lobbying whilst the other is silent (within the union), the union leadership is not entirely at fault if they believe the only people talking to them.

With regard to surveillance techniques, I do not think Bernie was ‘lying’ at all. He just has a very different view of these things to me. His attitude seems to be “All governments end up being authoritarian, so it doesn’t matter what powers you do and do not give them.” My attitude is “All governments end up being authoritarian, so it matters very much what powers you do and do not give them.”

I disagree with a lot of what Bernie says, but I do not think that he is being anything but absolutely truthful in representing what he believes is the best case for his members.

“Some people (though not Nathaniel, as far as I know) have gone so far as to say that a speed restriction or suspension of internet access amounts to a denial of a human right. I would see it more as an inconvenience.

A human right? How does that work unless it is also a human right to own a laptop and have high-speed access to an ISP? What about the five and a half billion people in the world with no prospect of either? At least in the UK if you get cut off you can always pop down to the local library or internet cafe.”

After trying so hard not to seem “old-fashioned” I imagine it’s funny to many younger readers just how old-fashioned you appear making this argument. The fact is, for most young people today, the internet is not only their number one source of information, commerce, and entertainment, but also their primary mode of communication, both personally and professionally. In your day, this would have been like cutting off someone’s phone line and mail service and taking away their car, but saying it didn’t infringe their human rights because they could still walk to a payphone.

You will surely disagree with the comparison, but I suspect many among the younger generations would find it only a slight exaggeration.

As for the five and a half billion people without internet access, it is my sincere hope to see that number greatly decreased within my lifetime. That being said, I suspect your argument here is rather disingenuous: you know quite well the difference between living in a community without internet access and being denied internet access in a community where all your friends and colleagues rely on it extensively for their communication.

As for internet access in cafes and libraries, it’s not clear whether they will be able to continue offering internet access in the future given the new secondary liability they may face under the DEB.

I think there’s a more fundamental point with the implication that a human right is not a human right unless everyone already has it. Across a lot of the world, women (probably numbering in the billions) do not have the vote. Does that mean that women’s suffrage isn’t a human right?

Aren’t all rights, to a certain extent, those things we decide to deem as rights?

Not to get too nit-picky, but it’s tough to suggest there is a human right to be informed about the world. Communication could be said to be a human right, but “communication about what?” would be the deciding factor.

A better question or point might be to look to the matter of “does this alter or inhibit my means to conduct my legitimate business?” Were someone to bring a complain to Company’s House that someone opening a pub right next to their “Kidney Donation Hospice” (sorry, best I could come-up with), then an actual examination of that pubic house’s location would be conducted. If, however, legislation declares — and I’ve not a clue how near the mark this is — that, due to the fact he’s shifting massive files around between him and his production and performing staff, Nathanial Tapley shall not have a broadband connection for the next 24 hours, this would not get an examination of the effect his business would experience as a result. Would Nathaniel’s human rights be infringed upon? No, but his businesses would certainly.

If there’s no way to tell the difference betwixt Nathaniel downloading a rough edit of a show he’s working on, and Nathaniel downloading pirated “Donkey Porn” (which, if he is, I wish he would send me a copy of it), then what’s the good of the measure at all? There certainly are ways of telling the difference, but if no allowance is made for it, then the legislation is a nonsense.

What further makes a nonsense of the matter is the concept of accusation being a sufficient basis for penalization. Now that is an infringement of a human right; the right to just and fair treatment under the law. In a democracy, certainly. Do we need to return to Runnymede, perchance?

I don’t think I disagree with you, and I’ve certainly never (as Bernie conceded) argued that broadband Internet access was a human right. I was, however, taking issue with his statement that something cannot be a human right unless everyone already has it. The implication of which is that the only human rights are naturally-occurring, which I think, philosophically, is quite a foolish position.

The ‘my opponents think that Internet access is a human right’ is a straw man; it’s an opinion I’ve never heard expressed. Bernie’s opponents think that depriving someone of Internet access is more than just an inconvenience, that is can be vital to their businesses and their access to government services, bank services, shopping, especially if they are old or handicapped. The fact is that some of the most vulnerable people in society are those most dependent on their Internet access to live a full life. Bernie’s opponents don’t think it’s a human right, they think that it’s a massively-disproportionate punishment for what he concedes is ‘a minor offense’, and one that is imposed on accusation rather than on the production of any evidence.

Also, deriding something as a ‘human right’ is a nice piece of dog-whistle politics here in Britain. The tabloids have decided that it is the Human Rights Act’s fault that imprisoned paedophiles have access to fresh running water, and the fact that we have to not starve people applying for asylum to death. ‘Human rights’ are now in the same bucket as ‘health and safety’, ‘the European Union’, and ‘votes for women’: nice ideas, but probably responsible for everything that is wrong with Britain, as readers of certain newspapers will know. If you want to suggest that something is a piece of petty nonsense, it’s easy to dosmiss it as ‘health and safety’, ‘politically correct’ or ‘according to some, a human right’. A certain segment of society will start nodding enthusiastically at the mention of their Pavlovian trigger words.